In 2022’s Online Dispute Resolution, Colm Brannigan and Marc Bhalla detail their definitions of, contributions to, and issues in the growing field of online dispute resolution (ODR). Throughout, they emphasize that ODR is a procedural, rather than a substantive distinction; while subject matters such as e-commerce and domain name disputes lend themselves to ODR, ODR can be used to resolve just about any dispute. The most concise definition comes during the book’s introduction and conclusion: “At its most basic, ODR is the application of technology to ADR [Alternative Dispute Resolution]”. (25, 262)* This covers arbitration, mediation, med-arb, and any other non-trial dispute resolution method.
The advantages of ODR are numerous and, as Brannigan and Bhalla rightly point out, plainly evident since the suspension of most in-person court proceedings in March 2020. Electronic data storage and retrieval, for example, means parties to disputes with extensive documentary evidence can pinpoint within that evidence during an arbitration or mediation without having to carry around thousands of sheets of paper. (114) Asynchronous methods like email give parties time to reflect and allow for explanation of their positions. (114) Transportation costs, which rank surprisingly highly in barriers to in-person dispute resolution, are eliminated entirely. (67)
Drawbacks include the comparative lack of co-presence, in which the parties are in the same room, experiencing the same surroundings. (122) In my experience attending mediations as an advocate, and in shadowing mediators, the room itself added character. The loss of this physical room creates a distance between the parties even when they can see, hear, and converse with each other on a videoconference. (122) This “depersonalized form of communication with decreased awareness of others” (124) may be a non-factor in one-off disputes, but may inhibit the sort of relationship-building behaviour that can help repeat-player parties such as divorced ex-spouses or business partners. Further, burned-bridge bias may cause parties communicating textually to be more aggressive or confrontational than they would during an in-person conversation, such as in making offers containing unreasonable deadlines. (132) This last issue is one that should be addressed by either in-person or virtual conversation.
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